About this Author

Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @CopyfightLawMeme

August 12, 2004

Hatch's Hit List #25 - EFF's Digital Front of Television Liberation

Posted by Ernest Miller

What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the Hatch's Hit List Archives. Send list suggestions to ernest.miller 8T aya.yale.edu.

The FCC's broadcast flag mandate doesn't go into effect for another 10.5 months or so. Until then, one is permitted to distribute non-broadcast flag compliant devices. Such non-broadcast flag-compliant devices will clearly be capable of aiding and abetting copyright infringement to a very high degree. And what organization is promoting the use of such devices? Why, the EFF, of course.

EFF is busy promoting the development and distribution of non-broadcast flag-compliant devices until the FCC makes it illegal through the Digital Front of Television Liberation, which is not to be confused with Television Liberation's Digital Front (splitters!):

Since machines you've already built will still work in high-def next year, we'd like to make HDTV tuner cards easy to use now, while they can still be manufactured. We want to help the MythTV project work seamlessly with the pcHDTV card so less technical users can beat the broadcast flag. We'll also use these systems as benchmarks against which to compare the capabilities of post-flag HDTV devices. We also want to hear about Windows and Macintosh HDTV tuner cards, with an eye toward helping people make the most of existing pre-flag products.

Once again, EFF claims that they only want to preserve existing fair use rights. Yet their program would preserve the right to infringe as well! You can't protect fair use without also protecting the crime of infringement.

EFF knows that if you preserve fair use rights some people will inevitably abuse those rights to infringe. The worst part is, some people will infringe accidentally if the tools are available. For example, some people might record a show for a friend who is going to be out of town and then give them a copy. Without a broadcast flag to prevent such "friendliness," some people will innocently be seduced into depraved lives of indifference to copyright. Clearly, the EFF's entire digital television project is a not-so-subtle inducement to infringement.

Fine, this is on Hatchs hit list. But I'm really disappointed in the hit list choices. Most of what you have put up really are on Hatchs hit list and some are on the bleeding edge of copyrights. But Hatchs INDUCE act covers everything. Your examples are the kind of thing that he still wants to include even in an updated INDUCE act, but right now the public needs to know that he has even targeted PHOTOCOPY machines by default. At this moment the public needs to know just how far off the deep end Hatch is, not about e-mail to RSS and the like.

I agree that it would be nice to make such glaring examples, but it may not be possible to target something like photocopy machines without instant dismissal. Even the iPod case was dismissed by proponents of the IICA, which the EFF did a nice mockup of. This list is exactly what is needed in my opinion, The more legitimate technologies (of the future and the past) that can be shown as targets of the bill the better, because right now Hatch 'n' Co. are playing into the demands of the RIAA, unaware of what their bill is doing to "good actors" (and not so good actors like the BSA)
-Ian

Yes, it is ironic that the BSA, who apparently had a hand in crafting the INDUCE act, finally realized that the law is so broad that it would target general purpose computers and software because they can aid and abet copyright infringement.